[2024] UKUT 00235 (IAC)

The intention in formulating the Immigration Rules was apparently to reflect settled authority on the eligibility of Zambrano carers; no more, and no less. Try as we might, however, we do not find any real support for the realistic prospect test in the authorities. It is not necessary to consider the authorities in the detail set out in the Secretary of State’s skeleton argument. We considered the absence of any reference to those authorities in Mr Deller’s oral submissions to be notable, and indicative of the absence of any real assistance being available in the jurisprudence.

It was not suggested in any of the CJEU authorities which were cited to us that the Article 20 TFEU rights of the EU national might not be compromised because their primary carer might in the future be able to regularise their status under domestic law. No such submission was made in Zambrano, Dereci, Chavez-Vilchez [2018] QB 103 or Iida and it has not, to our knowledge, been considered by the CJEU in any case.

In substance, the realistic prospect test is based not on the raft of European and domestic authority cited in the respondent’s skeleton but on the decision of the Court of Appeal in Velaj v SSHD. If that is not clear from the policy guidance which we have already cited, it is clear beyond peradventure when one considers the EU Settlement Scheme: derivative right to reside (Chen and Ibrahim/Teixeira cases) guidance, version 6, which was published on 12 April 2023. That contains the same text as we have reproduced at our [45] above, underneath the sub-heading ‘The Velaj Assessment’.

Velaj v SSHD was a case which arose under the Immigration (EEA) Regulations 2016. As Andrews LJ noted at [1], it specifically concerned regulation 16(5)(c), the material part of which we have reproduced at [35] above. As Andrews LJ explained at [15], the issue which fell for decision was

“whether a person deciding whether the requirements of Regulation 16(5)(c) are fulfilled must consider whether the British Citizen dependant would be unable to reside in the UK on the assumption that the primary carer (or both primary carers, as the case may be) will leave the UK for an indefinite period (irrespective of whether the assumption is correct); or whether the decision-maker must consider what the impact on the British Citizen would be if in fact the primary carer (or both primary carers) would leave the UK for an indefinite period.”

Andrews LJ surveyed the domestic and European authorities in detail before concluding that the language of the regulation did not compel the decision maker to make a purely hypothetical and counterfactual assumption: [47]. She therefore proceeded on the basis that the second of the approaches set out at [15] was the correct one. Andrews LJ explained that Chavez-Vilchez and Patel & Shah v SSHD [2019] UKSC 59; [2020] 1 WLR 228 showed that what was required was a fact specific enquiry, which called for a nuanced analysis of what was likely to happen in reality. Nothing in Akinsanya, CA, precluded the court adopting that construction of regulation 16(5)(c), for reasons which Andrews LJ explained at [53]-[70]. The reality in that case was that the British citizen children would, on the evidence, be remaining in the UK with their British citizen mother, there was no possibility that the children would be compelled to leave the UK with the appellant: [34].

On proper analysis, we do not consider that anything in Velaj v SSHD supports the realistic prospect policy adopted by the Secretary of State. The Secretary of State made no submission that Mr Velaj should have made an application for leave to remain under Appendix FM, or that his failure to do so was somehow relevant to the determination of his claim under regulation 16. The critical factor in that case was the statement by Mrs Velaj that she had no intention of leaving the UK with the children, and that was the factual basis upon which the appeal was decided in the Upper Tribunal and the Court of Appeal. Andrews LJ warned against taking a purely hypothetical approach to such cases, but that is what the Secretary of State has required his caseworkers to do in the subsequent policies, by considering the likely success or failure of applications which are yet to be made on the basis of evidence which is yet to be made available.

Following the hearing, therefore, we found ourselves in strong agreement with Mr Papasotiriou that nothing in Velaj v SSHD or the other authorities provided any support for the realistic prospect test.